Is Anybody Guilty Anymore?

Our Heartfelt Attitudes About Guilt And Innocence Are More Complicated Than Most Of Us Will Admit

April 02, 1995|By Wendy Kaminer. and Wendy Kaminer, who writes about politics, law and culture, is the author of "I'm Dysfunctional, You're Dysfunctional," "A Fearful Freedom: Women's Flight from Equality" and "Women Volunteering." This article is excerpted from her forthcoming book, "It's All the Rage: Crime and Culture" (Addison-Wesley). Copyright (C) by Wendy Kaminer.

In the parking lot of a suburban shopping mall, a 16-year-old boy points a gun at your head, takes your wallet and jewelry and hijacks your car. Somehow, he is arrested and brought to trial. He admits having robbed you, but pleads not guilty by reason of insanity: He has grown up in an anarchic community in which drugs and guns are common and few of his peers expect to grow old. He was badly abused in childhood, sustaining head injuries that contributed to his poor impulse control. He suffers from post-traumatic stress disorder and has occasional blackouts and flashbacks in which he relives his childhood abuse. He was unable to resist the impulse to rob you. In fact, he barely remembers the attack, which he walked through in a trance-like state. Not guilty?

If Lorena Bobbitt was innocent of intentionally dismembering her husband because she was in the grip of an irresistible impulse, then a large majority of people in prison should probably go free. Violent offenders often have trouble resisting their impulses--that's what makes them violent; they often have terrible histories of deprivation and abuse and were raised in environments in which violence was a primary form of self-expression. They have good reason to be crazy, at least temporarily, and many may have more credible insanity defenses than the one successfully raised by Lorena Bobbitt. If her story of marital rape was convincing, her claim about not remembering mutilating her husband was contradicted by admissions she made to police shortly after the attack: "He doesn't wait for me to have orgasm," she explained. "He's so selfish. I don't think it's fair. So I pulled back the sheet and then I did it."

But if the story of my fictitious mugger could easily be true, perhaps truer than Lorena Bobbitt's story, it's not likely that a jury would find it persuasive. The mere suggestion of a diminished capacity defense in a case involving a typical, random street crime infuriates people who say that they're sick of crime and violence and a justice system that routinely sets criminals free. In general, according to a 1994 National Law Journal poll, 59 percent of the public feels that claims of prior victimization by criminal defendants have "gotten out of hand."

Lamentations about the "abuse excuse" and our low standards of accountability abounded in the weeks following the Bobbitt verdict, which neatly coincided with the mistrials of Erik and Lyle Menendez, who as Dominick Dunne wrote, "shot their mother's face off and their father's brains out." The Menendez brothers claimed that they were abused as children ("adult children," they might have said), and had acted preemptively, in the belief that their parents were plotting to kill them. The mistrials came as a shock to a lot of people, given the facts of the case: The brothers were financially independent young adults who were free to leave home but stayed and shot their parents instead; there was no evidence of an alleged plot by Kitty and Jose Menendez to kill their sons; Lyle and Erik admitted killing their parents to a psychiatrist without mentioning a history of sexual abuse or any claim of self-defense.

Presented this way, the case against the Menendez brothers seems damning, but a recitation of the facts like this doesn't tell the story of the case; it's only the starting point for different stories formulated by the prosecution and defense. In this case, while the prosecutors told a story about coldblooded murder, for money, the defense told an even more sensational story about incest, which enough members of each jury believed. Hazel Thornton, one member of Erik Menendez's jury underscored her belief that he acted out of fear, not hatred or greed. The jury deadlocked partly over this question of motive, she said. Convinced that the brothers were motivated by fear, however unreasonable, Thorntion stressed that they were guilty of manslaughter, not murder.

Whether people were dismayed or relieved by the outcome of these trials, they were compelled to discuss them relentlessly. For weeks, the talk shows and commentators (myself included; I have no shame), pondered the use of claims of abuse as defenses in criminal cases. The question of Tonya Harding's complicity in the attempt to cripple Nancy Kerrigan was also front page news at the time, along with tales of abuse Harding suffered in childhood and at the hands of her husband, which many speculated would constitute her defense, were she ever indicted. (She pleaded guilty to obstructing justice.)

Suddenly, people started wondering whether expanding our notions of abuse and restricting our notions of accountability were conducive to maintaining the law and order so many craved. Even Oprah Winfrey engaged in a little self-criticism, devoting an hour to the role of talk shows in "popularizing abuse." Have we "glorified victimhood?" she asked, and "made it easy for weak people to come up with 101 excuses to explain when they can't take charge of their lives?"